To Make Pretrial Reforms Work, Listen to Workers in the Justice System
By Jennifer Ferone, Deputy Research Director
The following is an op-ed originally published in the Albany Times Union, and is based on our report outlining the findings of our process evaluation of New York State’s 2019 criminal legal reforms to bail, discovery, pretrial services, and appearance tickets.
New York is four years into a journey to reform a criminal legal system that incarcerated thousands of people before they were found guilty of a crime just because they couldn’t afford bail, even if they posed no risk to community safety. In 2019, our state leaders set out to create a more equitable system, overhauling key components of the pretrial process, including bail, evidence sharing, pretrial services and noncustodial arrests.
Though policymakers are responsible for establishing the policy frameworks, local agencies and practitioners — court officials, law enforcement, prosecutors, service providers and defense attorneys — are ultimately the ones who carry them out. Their buy-in during the legislative process can ensure policies in theory reach their intended goals in practice.
Taking stock of the challenges and solutions faced by those on the ground can not only assess New York’s experience but can support the momentum of pretrial reforms growing across the country.
To that end, the Institute for State & Local Governance at the City University of New York embarked upon a multi-year study to measure the firsthand experience of New York state practitioners as they implemented reforms to bail, discovery, pretrial services, and appearance tickets. We spoke with nearly 230 people from 30 agencies in 13 counties. In these conversations, we identified three key considerations.
First, it’s crucial to bring practitioner voices into the process as early as possible. Throughout our interviews, line staff voiced that the law’s statutes often did not take into account the realities of the situation on the ground. Reflecting on the major changes to evidence sharing, one prosecutor told us, "The problem was [leadership] were training on something they didn’t know either, all walking into this unknown.” From this feedback, we recommend creating a dedicated practitioner-led task force charged with flagging potential implementation issues for legislators, educating colleagues and championing legislation benefits. To improve and standardize implementation, we also recommend that statewide agencies work with folks on the ground to develop centralized training and resources.
Second, set realistic timelines and provide adequate resources. In our study, agencies reported needing to increase financial, technological and hiring capacity to effectively support the changes, but the initial legislation only provided nine months and no additional resources to do so.
The expansion of pretrial services is a prime example. With many more people now released into their supervision instead of being kept in jail, more staff was needed to handle the influx. As an upstate pretrial provider put it: “It’s not reasonable to assume smaller agencies have the staff to do this. The state says it has no money, but they mandate things and that puts the counties in a bad position.” A longer runway would allow more time to identify additional funds and train staff.
Third, institute robust, state-led data systems to measure how progress is being made towards the law’s objectives and promote transparency. The local practitioners we spoke with reported varying abilities to effectively project and monitor the law’s impact. While New York City has robust data capacity that helped agencies prepare for the changes, such as the ability to project the threefold increase in pretrial service participants, many agencies outside of NYC did not have the same capacity to predict hiring, expertise and programming needs.
In addition, collecting this information earlier in the process and sharing it regularly with the public may have helped guard against some of the misinformed coverage dominating the narrative around the law.
New York has made strides in meaningfully reducing unnecessary pretrial incarceration without compromising safety. Practitioners across the state have diligently committed to adjusting policies and practices to adhere to the new law’s provisions. This study illuminates the incalculable value of partnership between people on the ground and policymakers. In every field, those directly charged with carrying out policies have a crucial role to play in reducing the gap between lawmakers’ laudable goals and the reality of implementation.